December 18, 2012

The new intellectual property policy, which takes effect on January 16, comes three months after Facebook completed its acquisition of the popular photo-sharing site. Unless Instagram users delete their accounts before the January deadline, they cannot opt out.

Under the new policy, Facebook claims the perpetual right to license all public Instagram photos to companies or any other organization, including for advertising purposes, which would effectively transform the Web site into the world's largest stock photo agency.

As the parent of two teens, I can tell you with certainty that Instagram is far more important to that age group than Facebook. According to my kids, FB is over. That whole demographic spends free time checking everyone's Instagram and liking various photos. FB is an afterthought.

I suspect that all this means is that they want to use your photos in generated ads to push Instagram on your Facebook friends.

("Some or all of the Service may be supported by advertising revenue. To help us deliver interesting paid or sponsored content or promotions, you agree that a business or other entity may pay us to display your username, likeness, photos (along with any associated metadata), and/or actions you take, in connection with paid or sponsored content or promotions, without any compensation to you. "

Yup. That's it. Not a horrible plan to Steal Your Stupid Picture And Make A Mint Off It.

It must be characteristic of the decay of republics that folks get excited about pissant threats. Who gives a tinker's dam? You think they're going to sell your teen's face to an online pr0n shop that will photoshop a dick in her mouth?

Well, they might. But probably not, because the online shop -- hosted in Russia by mobsters -- isn't going to bother to buy the photo of your pretty teen they find on the Interwebz. Why would they pay for what people make available for free?

I would hope people with very pretty faces already know they have something valuable, and do what they need to do to control its exposure. (And I imagine at the just being discovered stage, they actually prize exposure.) For the rest of us, with ordinary and humble mugs, this means almost exactly squat, and if we had any brains we'd get excited enough for mass action at the government acquiring increasing power to rummage around in our lives. That poor bastard rotting in an LA jail just because he embarassed the Obama Administration over Benghazi -- that should get the masses way more worried than Instagram/FB follies.

But it won't, of course. Which is why we live in the decline of the republic. James Madison would've known which was a priority.

Don't know the entire legal issue here, but one thing is clear to me, and that is that Instagram is most likely not going to end up owning the copyright to the photographs. At best, it will have some sort of limited license. Sale or exclusive license of a copyright requires a signed writing, and clicking the accept or agree button on a click wrap license is not a writing. And, of course, any party attempting to sell or exclusively license the copyright to a work needs to have the legal authority and ability to do so. This eliminates minors, works owned by others, works owned by corporations, etc.

With non-exclusive licenses, it comes down to two basic questions: what can the licensee do, and what can the licensee prevent someone else from doing. Instagram may indeed have enough rights from their license to allow them to sublicense the photos, but is unlikely to have enough rights to prevent someone else (including the copyright owners) from also licensing the works.

Which is, maybe, a long way of saying that the sky is unlikely to fall on us, even if Facebook goes through with this.

As the parent of two teens, I can tell you with certainty that Instagram is far more important to that age group than Facebook. According to my kids, FB is over. That whole demographic spends free time checking everyone's Instagram and liking various photos. FB is an afterthought.

Yes. That and SnapChat.

FB is used by my youngest now only as a notification tool, in the form of a group that people of similar ilk join.

Reading the articles and the policy, this only really matters for people who take good-quality photos, and would like to make money from them. What FB/instagram are saying is "even if we make money from your photos, we don't have to pay you anything more than allowing you to use our service". For most people, and most photos, Instagram is paying too much.

The thing which I'd most object to is that it seems that Instagram retains rights to photos you delete from the service. (Can you delete photos without deleting your account?) So if you'ev *ever* posted something to Instagram, they can use it forever.

The little guy is always screwed. Have a meteorite fall on your house and think you might benefit somehow when someone tells you that museums and collectors pay up to $Millions if the size is right? Sorry. The government will come in and take it and won't give you a penny. They own it you see. Have the doctors told you that you have a tumor--but that tumor is growing at an unheard of slow rate and you think you might have something to sell to Big Pharm? Sorry, Charlie. The surgeons can benefit financially, but not you. The courts ruled in the 1980s that you don't own your own DNA and don't have rights to what comes out of your body.

What Sigivald said. For example, a theme park could pay to display Instagram photos tagged with various ride locations on the park's page, without having to attempt to license the individual photos from each user.

The processed Instagram photos are of pretty limited use for stock purposes, but some users save the higher resolution originals. If a company decides they want that then they'll still have to contact the photographer.

Is it a shock to discover that FB/Instagram use the content we create to make money? They aren't providing hosting infrastructure to their users out of charity, after all.

My daughter takes pictures of pictures I've taken, and puts them on instagram.

Who owns the rights?

To start with, you probably both own the copyrights to your respective photographs, but hers is a derivative work of yours, and so you some rights to control further reproduction and distribution of your photo, even if it is shown in hers.

A lot of things go into what sort of license was granted Instagram (or whoever). Was your daughter 18 at the time she signed up (you don't need to answer this publicly). If not, then she probably couldn't legally agree to the license, or, if she could, it is likely voidable at her 18th birthday. That sort of normal contract law. And, even if she did have contractual capacity, she may not have had sufficient license rights from you to allow this third party to reproduce and maybe even sell your photo.

Since they make people uploading photos swear that they own the rights to anything being uploaded, your own recourse is to sue your daughter. Sorry! Loser!

Not really. If I sell your house to someone else, without your permission, is the sale valid? Even if I swear that I own the house on a stack of Bibles? Most likely not. You (mostly) can't actually sell something (as grantor) that you don't own.

And, if I sell your house to Ann, without your (written) permission or authority, Ann's recourse is against me, and not you. You still own your house, and I would owe her for the purchase price.

If Instagram does this they'll lose far more money than they make, guaranteed. They'll end up plastering IP without a contract and people without model releases across the Internet and will be sued into oblivion.

"Have a meteorite fall on your house and think you might benefit somehow when someone tells you that museums and collectors pay up to $Millions if the size is right? Sorry. The government will come in and take it and won't give you a penny."

False. Falls on your land, your property. There is an issue about fossickers on BLM land that you may be confused about.

It does open up a lot of fascinating legal issues. For one, if Instagram doesn't force its users to reaccept its new terms, are they bound by them? A lot of click wrap and shrink wrap licenses have provisions that the licensor can change terms at its own discretion, and its licensees will be bound to the new terms. This is very iffy, from a legal point of view.

Shrinkwrap licenses were highly questionable, because they so clearly constitute after supplied terms under UCC Article II. I think that it was Federal District Court Judge Easterbrook, or someone like that who gave them some legitimacy through the legal theory that "everyone is doing it". Still, Microsoft appears now to be putting language on their physical packaging stating that the license to use the software is explicitly subject to the terms and conditions found later, either in the package or when installing, etc.

With Click-wrap licenses, they try to avoid this by making potential licensees explicitly agree to the terms of their click-wrap licenses before their software is downloaded or enabled, or their service is made available. And, I think that this is much more viable than the shrinkwrap assertions.

But, when it comes to licensors changing the terms of their licenses after their licensees have accepted license terms, I think that they are on much shakier ground. These are, indeed, after supplied terms, and I think subject to UCC Article II limitations, regardless of the licensor's attempts to bootstrap them into validity.

This is, of course, all hypothetical, and Instagram may indeed allow its subscribers to ratify the new license terms, or delete their services, and if they do so, my previous point would be moot.

I do wonder how this will correlate with people who think they have the right to dowload free movies and music without the artists permission through bit torrent sites.ARe these same people now getting mad that THEIR photos are not their photos?I sure hope not.

Under the new policy, Facebook claims the perpetual right to license all public Instagram photos to companies or any other organization, including for advertising purposes, which would effectively transform the Web site into the world's largest stock photo agency.They can monetize this work without getting approval from the artist/photographer who took the work. But you could easily download copies of the work, or get it through bit torrent then send out links to the self same pictures through a pirate bay and skip paying Instagram anything.And the hosting company will get rich through hosting this self same material.I'm wondering who in fact I should have pity for. Those who created the work, or the companies using the work for their benefit by charging for the pictures. Or the companies ignoring the monetized efforts and in effect giving away other companies digital property without paying them a red cent, but still getting rich off the deal.Saying digital stuff should be free, kind of makes the whole copyright argument moot.As it went with movies and tv shows and music, so too shall it go with photos and books and your personal data (like your credit cards). And why not, it's all digital 0s and 1s. If you have no problem stealing music and media,then you have no right to be outraged that your stuff was taken from the cloud.

The kids are uploading to Instagram because it's free and it works for sharing their pictures. They want to share their pictures. They're not concerned about monetizing their photography. They write programs and offer freeware.

Conversely they download music, shows and computer programs because it's free and it works and they want (you) to share. They are not concerned about (you) monetizing your material.

They give and take and expect that. It's the world they're in. It's the world that's coming. It's a much more commie world than the one we're used to operating in and informs our behavior. This last election showed me that's irreversible. A bit unsettling, I know, here, let's calm ourselves and have a piece of pie.

I don't give a hoot about Facebook or Instagram. But I think it's interesting how the public loves downloading their free music and movies all over the internet but raises a hue and cry about "rights" when the corps want to take something back from them.

Have a meteorite fall on your house and think you might benefit somehow when someone tells you that museums and collectors pay up to $Millions if the size is right? Sorry. The government will come in and take it and won't give you a penny

In all fairness, they only do that if it is an alien space craft that crashed. When it is a regular ol' chunk of spacerock they let ya keep it.

I wonder how they can make a valid claim that the actual taker of the picture agreed to allow them to use it. If I steal a pic and put it on Instagram, it'd be a stretch to argue that they have the right to publish a photo I didn't take.

So when Mamet meets with his rabbi who is the mark. I think this kind of cynicism precisely feeds these kind of actions. If everyone goes around thinking someone is the mark you better make sure you are getting your piece so you aren't the mark.

Wrong again, PenQuin. Look it up. The BLM is asserting ownership and requiring pre-licensing. Some States have joined in on the fun. Meteorites have been confiscated. Whether any of this could stand up in court is a different matter. Most times the government assumes the the private citizen won't finance the expensive legal challenge. And they are right.

An ol' buddy of mine owns a small meteorite and am simply repeating what was said when I first noticed it on his bookcase.

Could be we're both right on this one. The law would obviously say they are gonna seize all space debris ('cause they can't publicly admit they are only interested in the alien technology) but what really happens is they simply let folks keep 'em when it is just a rock.

My understanding is that, in general terms, the creator of the art work (e.g. the photographer) owns the intellectual property (copyright) of the work. When a photographer uses an art director, make-up artist, model etc etc, then there is generally a commercial arrangement that includes the acknowledgement that the IP rests with the photographer this can of course be varied by way of contract between the parties. The agreement concerning provision of associated services, such as art direction, would normally include the range of use of the photos.buy music downloads